People ex rel. Schwartz v. Temple
Before: Belcher
Synopsis
Vacation of Judgment—Time of Motion—Want of Jurisdiction of Person.—A judgment which is void upon its face, and which requires only an inspection of the judgment-roll to show its invalidity, will he set aside on motion by the court rendering it at any time after its entry; hut if it is not void upon its face, and its invalidity does not appear from the judgment-roll, it cannot he set aside upon motion for want of jurisdiction over the person of the defendant, unless the motion is made within a reasonable time after its entry, not exceeding the limit fixed by section 473 of the Code of Civil Procedure.
Id.—Validity • of Judgment—Judgment-roll—Summons—Service by Publication—Affidavit and Order.—Whether a judgment is void upon its face or not can only be determined by an inspection of the judgment-roll, and when the service of summons is by publication, the affidavit and order for publication are no part of the judgment-roll, and cannot he considered.
Id.—State School Land—Annulment of Purchase—Void Order Setting Aside Judgment.—Where the judgment-roll in an action by the people to foreclose the interest of a purchaser of state school land, and to annul the certificate of purchase, shows service of summons by publication, and contains all the papers properly constituting the judgment-roll, which are all in proper form and sufficient, the fact that no affidavit or order for the publication of summons is found among the papers, and that there is no entry in the record that any such affidavit or order was ever made, is immaterial; and the judgment not being void upon its face, the court has no power to grant a motion made more than twelve years after the judgment was entered, to set it aside for want of jurisdiction of the person of the defendant, and its action in so doing must be held void and of no effect.
Id.-—Remedy by Action—Power oe Court.—When a judgment is not void upon its face, the court has no power to set it aside on motion, unless the motion is made within a reasonable time, bnt resort should be had to an action, and all the parties interested should be notified and have an opportunity to be heard.
Belcher, C. This action was instituted for the purpose of having two state patents, one for the east half and the other for the west half of a certain sixteenth section of land in San Diego county, vacated and set aside, so far as they affect the south half of the section, upon the ground that they were issued without authority of law, and were void.
The court below found the facts very fully, and gave judgment for the defendants, from which the plaintiffs appeal on the judgment-roll without any statement or bill of exceptions.
. The facts found, so far as they need be noticed, are, in Substance, as follows: Prior to July 28, 1865, the said section was surveyed by authority of the United States, and on that day the township plat, including the same, was on file in the proper United States land office. The whole section was then vacant and unoccupied, and it remained so until some time in the year 1883. On May 10,1869, Henry Schwartz, the relator, who was then qualified to purchase school lands from the state, made application to purchase the south half of the section, and his application was approved by the surveyor general on July 14, 1869. Within fifty days thereafter he paid to the treasurer of San Bernardino county twenty per cent of the purchase money, and the first year’s interest on the balance, and 'also the sum of three dollars for the issuance of the certificate of purchase, and on September 11th following a certificate of purchase, in the usual form, was issued to him, which he never assigned or transferred.
In the application made by Schwartz and in the [451]order approving the same, the said section was described as being in San Bernardino county, and it was then and thereafter, by the land department of the state, and by the public authorities generally, believed to be, and treated as being, in that county until a survey of the county line was made in 1880 or 1881, when it was found to be in San Diego county.
Schwartz paid the interest on the balance of the purchase money up to January 1, 1874, but never after-wards paid any interest or any part of the principal. On July 8, 1876, an action in the name of the people of the state of California was commenced against him in the district court of the eighteenth judicial district, in and for the county of San Bernardino, to foreclose his interest in the said land, and to annul the said certificate of purchase. The action resulted in a judgment by default, entered on December 12, 1876, which recited “ that the defendant has been regularly served with summons in said action according to law,” and granted the relief prayed for.
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